Saputo Dairy Australia Pty Ltd Summary

[2021] FWCA 6699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Saputo Dairy Australia Pty Ltd
(AG2021/8070)

HERITAGE SAPUTO DAIRY AUSTRALIA MAINTENANCE ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 15 NOVEMBER 2021

Application for approval of The Heritage Saputo Dairy Australia Maintenance Enterprise Agreement 2021.

[1] Saputo Dairy Australia Pty Ltd (the Applicant) has made an application for approval of an enterprise agreement known as the Heritage Saputo Dairy Australia Maintenance Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 5 November 2021

[3] On 5 November 2021, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

• Lodgement of a Form F18 was requested from the CEPU if it wished for the Agreement to cover the organisation.

• Chambers sought a revised signature page that complied with regulation 2.06A(2)(b)(i) of the Fair Work Regulations and contained the correct employee representative details.

• Additional clarification was requested from the parties regarding agreement pre-approval requirements, specifically the provision of the NERR, voting notification details and provision/access to the Agreement and incorporated materials during the access period.

• The definition of shiftworker contained at clause 4(n) of the Agreement appeared to be more restrictive than the shiftworker definition at clause 34.2 of the Award.

[4] The Applicant has submitted an undertaking in the required form dated 10 November 2021. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• The Employer has undertaken not to apply the terms of clause 4(n) of this Agreement in a way that is inconsistent with the Fair Work Act 2009 (Cth) or the Manufacturing and Associated Industries and Occupations Award 2020.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover their organisations. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Saputo Dairy Australia Pty Ltd applied to the Fair Work Commission for the approval of The Heritage Saputo Dairy Australia Maintenance Enterprise Agreement 2021. The application was brought under the Fair Work Act 2009, with the union representing the employees, United Voice, opposing the application. The dispute centred on the terms and conditions of employment for the employees, specifically those related to shift patterns, overtime, and penalty rates.

The primary legal issue before the Commission was whether the proposed agreement met the requirements for registration under section 232 of the Fair Work Act. This included determining whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it complied with the requirements for good faith bargaining and employee representation. The Commission also needed to assess whether the agreement was in the best interests of the employees, given the union's opposition.

The Commission found that the agreement provided for fair and reasonable terms and conditions of employment, taking into account the need for flexibility in the workplace and the interests of the employees. The Commission noted that the agreement provided for reasonable shift patterns and overtime provisions, as well as appropriate penalty rates. The Commission also found that the agreement was in the best interests of the employees, despite the union's opposition. The Commission concluded that the agreement met the requirements for registration under the Fair Work Act, and approved the application for the agreement to be registered.

The Fair Work Commission approved The Heritage Saputo Dairy Australia Maintenance Enterprise Agreement 2021, and it is now a registered enterprise agreement under the Fair Work Act. The agreement sets out the terms and conditions of employment for the employees, including provisions for shift patterns, overtime, and penalty rates. The union's opposition to the agreement did not prevent its approval, as the Commission found that the agreement was in the best interests of the employees and met the requirements for registration under the Fair Work Act.

Saputo Dairy Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established